Williams v. Mac Sim Bar Paper Co.

It is sought to reverse the judgment entered on the verdict of a jury in favor of plaintiff on the ground that it is against the weight of the evidence. The chief ground urged for such contention is that the weight of the evidence shows, from the testimony of numerous disinterested witnesses, that the accident occurred by reason of the fact that plaintiff's automobile was driven over the center line of the road to his left, and collided with the trailer of the truck while it was proceeding on its own side of the highway. The proposition, therefore, resolves itself into whether the clear weight of the evidence shows that, at the point of collision, plaintiff's automobile was on the wrong side of the road. Mr. Hourigan, defendant's driver, testified that he first saw plaintiff when he was about 75 feet from him; that defendant at the time was entering the curve, and that the truck continued to come through the curve; that he put his brakes on after plaintiff struck the trailer, and that the trailer was on its right-hand side of the road at the time of the collision. Hourigan did not testify that he saw the collision. Mr. Gilson who was riding with defendant's driver at the time of the accident did not see the collision. It occurred at the extreme end of the trailer, about 33 feet back of where the driver was sitting. The witness stated that they were on the curve and that the truck and trailer, in the direction in which they were proceeding, were on the right-hand side of the road. He further testified the truck proceeded ahead about a hundred feet, after the accident, until it was stopped. Both Hourigan and *Page 216 Gilson testified that plaintiff drove to his left over the middle line of the road, and back to his right before the accident. Plaintiff's claim was that when he first saw defendant's truck and trailer it was cutting the curve; that the truck was on its proper side of the road, but the trailer was three or four feet across the center line, on plaintiff's side of the road; that after the accident, plaintiff lost control of his car and finally stopped with one end of his car on the right-hand side of the road and the other on the left. If we were to consider the case on the testimony of these three witnesses it would be conceded, I feel, that the evidence presented a question of fact, and that a verdict for plaintiff could not be said to be against the weight of the evidence. However, there were four other witnesses who testified on behalf of defendant with regard to the physical facts. Can this testimony, considered with that of Hourigan and Gilson, be said to result in a clear ponderance of the evidence in favor of defendant's claim? If not, the judgment entered on the verdict should be sustained. John Brown was about 300 feet from the accident when he heard the collision. He went back and saw the tracks of plaintiff's car "leave the right lane and went across the center and run on the left lane, and back to the right again, and then straddle the center line." This testimony, in itself, does not dispute plaintiff's claim, if it be considered that these tracks were those of plaintiff' car after the collision. He further testified that these "tracks left the right lane and crossed clear over beyond the center line on the left lane, and then back over on the right lane and halfway over the center line,that is where it stopped, where it smashed up." The only reasonable conclusion to be drawn from *Page 217 the foregoing is that the witness thought the place of the collision was where plaintiff's car stopped. This is contrary to the testimony of the plaintiff, as well as that of defendant's driver and the man who was driving with him. The witness, however, testified: "I was able to see the point of the accident from where I was. I saw it, after I heard the noise I looked down there. I looked at the tracks of the tractor to see whether it had been on its own right side; they were straight, the outside set of wheels was on the shoulder. I did not follow them back to the point of the collision, that is where I looked at them, right at the collision. The tracks were straight, they didn't zigzag. They weren't over the center line. He was half way off the cement." But was this witness able to see the point of the accident from where he was, and did he see the place where the collision occurred? He testified as to the place of the collision as follows: "Where the accident was there was no curve, it is further east. The truck hadn't reached the curve. As to whether the other car had passed through the curve, I didn't see the car. I heard it hit. At the point of the accident, I saw the car where it came to rest, that was out of the curve on the straight of way. The truck hadn't reached the curve, but the other automobile had been through the curve." In the above testimony he is contradicted by both plaintiff and the defendant's driver, as well as the man who was sitting in the seat with the driver. Their testimony is in agreement that the collision occurred on the curve. Under these circumstances the testimony of Brown is of little weight, for it discloses that he did not know where the collision took place. Another witness for the defendant, Mr. Strempki, testified that when he heard the collision, *Page 218 he came out of his place and saw the truck standing on the right side of the road; that it was standing right where the accident happened, — 100 feet from the curve. This is contrary to the testimony of defendant's witness, Gilson, who stated that the truck was driven 100 feet from the scene of the collision before it stopped; and it is also contrary to the testimony of Gilson and defendant's driver, as well as the plaintiff, that the collision occurred on the curve. Such evidence is not persuasive as to where the accident took place. Mr. Breed, another witness for the defendant, testified that he did not see the crash, but came out of his house and found the truck pulling off the road on its right-hand side; that he determined that the accident happened about 40 feet away from this point, and that the collision occurred 100 feet west of the curve, and "about a foot and a half further west from where" plaintiff's car stood after the collision. His testimony, it can also be said, was contrary to that of defendant's driver and the plaintiff. George Strong, a State police trooper, testified that he reported to the scene of the accident. He stated: "For our information we located a spot where the contact should have — or within approximately two or three feet, you can locate where the point of contact was. The distance the truck was from the car and from what we could — information we could get from the drivers of both cars." He further stated that the tracks made by the vehicles were wiped out when he arrived; and that the accident occurred 75 or 100 feet west of the curve. Chester Emmons, another State trooper who accompanied Strong, testified largely of "estimations" he and Strong had made, and fixed the point *Page 219 of the accident from information he gathered at the scene of the accident, and also because he felt that the place of the accident was where he found a mark of "dirt" on the highway, which he assumed had come from plaintiff's car at the point of impact; that in his opinion, the truck had not yet arrived at the curve at the time of the collision. All of the testimony of these last five witnesses could not be said to result in a clear preponderance of the evidence in defendant's favor. The important point was where the collision occurred. None of them saw the collision. Their testimony on the point in question directly contradicted that of the defendant's driver and the assistant driver who was with him at the time, as well as that of plaintiff. An examination of the record discloses that they knew nothing whatever with regard to the vital issue in the case. Under these circumstances, a verdict in favor of plaintiff cannot be said to be against the weight of the evidence. Error is assigned by defendant that the trial court erred in permitting a medical witness to testify with regard to plaintiff's injury because he based his testimony on what had been told him about the case. It cannot be said that the testimony was based on hearsay. The witness in question only took into consideration facts, as stated in a hypothetical question, in giving his opinion on this phase of the case. In this there was no error. The judgment is affirmed, with costs to plaintiff. BUSHNELL, CHANDLER, and NORTH, JJ., concurred with McALLISTER, J.